The chapter covers everything from Don Quixote to G-Dragon — with the intent to reach not only an academic audience, but also to help fandom communities understand the complicated issues surrounding fanworks. Of course, there is much more to be said — so also be sure to read Henry Jenkins and Rebecca Tushnet to start!

And since I couldn’t embed the music video to 니가 뭔데 (WHO YOU?) in the chapter, here it is. Think about not only the ownership issues for the music video, but also how what the fans thought about their recordings (and their own images) being used in this official video for a kpop song. And about who makes money from this video….

This chapter draws parallels across fictional genres, historical periods, and national legal and cultural traditions, to explore the relationship between popular forms of copyright protected fiction and the diverse forms of fan fiction that develop in relation to such works. Whilst fans of various fictional works revere the authors whose works they like, this reverence often takes the form of a kind of guardianship or that does not directly conform with authorial/ corporate conceptions of copyright control. Fans are not passive recipients of content, but active in their engagement with it. Often this involves creative copies, extensions and revisions.

While parody is protected as “fair use” in US law, much fan fiction, precisely in so far as it reveres the original, cannot be so regarded and thus can be seen as a copyright infringement under the law. However, to the extent that fan fiction is rarely produced or circulated for commercial gain, its existence has often been regarded as harmless to copyright holders. Fan fiction is also, for the most part, highly beneficial to rights holders in holding and extending interest in their creative work. Nonetheless, disputes have arisen when it is suggested that fan fiction is either commercially oriented or might harm legitimate sales or the reputation of the original works. The issue of whether fans are themselves being exploited in the work they do in promoting and adding to commercial works is also discussed.

A variety of examples are used to highlight tensions between creativity and copying, help and harm. These include actual lawsuits, such as JD California’s take on Catcher in the Rye (the prohibited 60 Years Later) and various lawsuits involving the Harry Potter franchise. Non-litigated examples include Japanese comic book fan fiction (doujinshi), a form that has achieved relatively high status in Japan and which may offer an example of a more harmonious way of dealing with author/fan relations than simply asserting the exclusivity of copyrights. The bookend examples relate to whether Don Quixote (and his creator Miguel de Cervantes) could have better revenged himself on those that parodied him if he could have used the legal framework of “moral rights” rather than those of Anglo-Saxon “copyright” — and the IP implications of k-pop artist G-Dragon making a music video in which his fans create the visuals.

Jessica Silbey’s The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property (2015) is an important book — and will likely be one of the most influential works of legal scholarship this year. [Editor’s note: I’m reading Frank Pasquale’s Black Box Society, which has a similar level of import.] Why? Because it has the potential, if used by policymakers and lawmakers to reshape how we view and protect intellectual property.

There is so much scholarship about why people create — and whether intellectual property law, especially copyright law and patent law, fully protect creativity. There have been some experimental studies, but most of the scholarship that existed before this book was theoretical, rather than talking to those that create. Silbey actually interviews artists of all stripes (musicians, journalists, visual artists and more) and scientists, and those that surround them — business partners, employers, lawyers and managers, describing how and why creators create and innovators innovate. She asks them about the role — if any — that intellectual property law plays in the process.

And what is the overall answer? Creators don’t create based on the existence of intellectual property law, mostly. IP law can be a way to help them — or their employers make money, but it is not their internal driving force. Instead, IP law is frequently in the way of creators, an annoyance wielded by their lawyers. Sibley states

One of the most interesting chapters focuses on the role of lawyers in the creative process, told from their own perspective. While all of the book should be read by those interested in intellectual property and incentive policy, this one chapter should be used in law school classes about practice because it details and describes the importance of the differing roles a lawyer can have — an advisor, a teacher, a Cassandra of impending danger, a contract reader — in addition to all of those things that television says will cause a lawyer to be called “counselor” in a extremely pitying way.

Silbey’s long empirical study concludes continuing to focus on the interests of those who create, rather than on retaining our present system of intellectual property law.

People crave work and relationships that are remote from wealth. … Separating the people who do and make everyday IP from those that benefit from it generates unproductive schisms and irrelevant rules. The misalignment of IP with the myriad goals creators and innovators pursue helps us identify and thereafter preserve only those IP rules that remain right for [creators]. (284-85)

Summary: Read this. This book will hopefully change the moral rights-ish arguments made about intellectual property rights in the United States. But even if not, you will learn much about the interaction (or not) of IP and the creative process, in the voices of those that create.

Editor’s Note: This is a new series based around common copyright and publishing problems. Hopefully, this post will change policies of some of these journals — and therefore the information will be updated at least yearly. Earlier posts focused on top law journals and top intellectual property journals.

Considering that much of the scholarship that is cited in law is from top law journals, how well do these journals do in making their archives available to the public? Some may say that these journals are available in databases, including HeinOnline, and others, but making student-edited law reviews available to the public free of charge helps everyone better understand the law and demonstrate what legal academics do. Accessibility to law review articles is key to demonstrating the continuing value of legal scholarship.

I reviewed 44 journals — the top law reviews overall (according to the Washington and Lee listing), the top intellectual property journals, plus a few additional journals that specifically state that the author’s retain copyright in their articles. I looked retrospectively — how far back their online archives on their own website or an institutional repository went. How did these journals do?

Of the journals looked at, these are the few gold star recipients — the journals that have a free online archive back to page 1 of their first volume plus authors retaining copyright:

Berkeley Technology Law Journal

Duke Law & Technology Review

Duke Law Journal

Hofstra Law Review

Northwestern Journal of Technology and Intellectual Property

U.C. Davis Law Review

Washington and Lee Law Review

Yup, that’s it.

These are all of the top journals that provide a free archive back to page 1:

A special mention of both Duke and Fordham — which are the only law schools with both a top general and top IP specialty journal with the full archive available for free.

Offering an online free archive back to the first page doesn’t specifically relate to the ranking of the journal/school, considering that several of the top twenty general law reviews have a complete free archive: University of Pennsylvania Law Review (#5/journal); Fordham Law Review (#14); Cornell Law Review (#15); Notre Dame Law Review (#16); and Duke Law Journal (#19). On the other hand, The Georgetown Law Journal (#6) has the shallowest backfile studied — only available online back to 2012, highly surprising considering the depth of the Georgetown Law Scholarly Commons which doesn’t include this law review.

The question raised at this point is likely: What does this matter, if these aren’t the articles people are looking for and citing? The next post in this series will focus on top cited articles and their availability.

Editor’s Note: This is a new series based around common copyright and publishing problems. Hopefully, this post will change policies of some of these journals — and therefore the information will be updated at least yearly. The first post in this series focused on top law journals.

So how do the top 25 intellectual property journals do presenting to authors whether they will be signing over their copyright to published articles? Very badly.

Only four of the journals, Berkeley Technology Law Journal, Columbia Science and Technology Law Review, Duke Law & Technology Review, and Northwestern Journal of Technology and Intellectual Property, state that authors retain copyright in their articles. An additional two to four journals state that the journal retains copyright.

Both Berkeley Technology Law Journal and Duke Law & Technology Review have their actual author agreements available for the public (and potential authors) to read.

we’ve refined our author agreement (already very liberal) to explicitly ensure that authors retain their copyrights, and we’re making our agreement public on our website. At the same time, we’re also embracing open publication, formally putting our articles under a Creative Commons Non-Commercial No-Derivatives license, and allowing our authors to distribute themselves under even more liberal licenses if they so choose.

However, there is this great video by Luis Villa, editor-in-chief of the 10th Volume of the Columbia Science and Technology Law Review, about the journal’s switch to open access — featured on Columbia University’s Scholarly Communication page. This video helps to explain open access, citation counts, and contract principles!

Perhaps this is an issue due to the turnover of student editors, but the lack of ability to show how even one IP journal moved from closed access to open access, plus full author rights with a publicly available contract is disappointing.

Now we know that authors in most instances need to wait for acceptance of their articles with both top law journals and top IP law journals before seeing what the contract terms are.

But what is the impact on the public to be able to access these articles? The next post will focus on open access and archiving of issues of law reviews.